Small Estate Heirship Affidavit for Estates under $100,000
Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized:
1.Small Estate Affidavit - Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value.
2.Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example:
If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed.
South Dakota Summary:
Under South Dakota statute, where as estate is valued at less than $50,000, an interested party may issue a small estate affidavit to collect any debts owed to the decedent.
South Dakota Requirements:
South Dakota requirements are set forth in the statutes below.
29A-3-1201. Collection of personal property by affidavit.
29A-3-1201. Collection of personal property by affidavit. (a) Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating that:
(1) The value of the entire estate, wherever located, less liens and encumbrances, does not exceed $50,000;
(2) Thirty days have elapsed since the death of the decedent;
(3) No application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;
(4) The decedent has not incurred any indebtedness to the Department of Social Services for medical assistance for nursing home or other medical institutional care; and
(5) The claiming successor is entitled to payment or delivery of the property.
(b) A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (a).
Source: SL 1994, ch 232, 3-1201; SL 1995, ch 167, 136; SL 1997, ch 172, 1; SL 2002, ch 100, 26; SL 2003, ch 157, 1.
29A-3-1202. Effect of affidavit.
(a) The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released as if the person had dealt with a personal representative of the decedent, and is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit.
(b) If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered in a proceeding by or on behalf of the persons entitled to receive it upon proof of the facts required to be stated in the affidavit.
(c) Any person to whom payment, delivery, transfer or issuance is made is liable and accountable therefor to any personal representative of the estate or to any other person having a superior right.
(d) Any affiant receiving payment or delivery of personal property under this section shall be responsible for seeing that the property is applied to liens and encumbrances, homestead allowance, exempt property, family allowance, funeral expenses, expenses of administration and creditor claims, as required by law, and that any remaining property is distributed to heirs and devisees entitled thereto.
(e) An affiant submits personally to the jurisdiction of the courts of this state in any proceeding relating to the affidavit that may be instituted by any interested person.
Source: SL 1994, ch 232, 3-1202; SL 1995, ch 167, 137.
